Wednesday, October 13, 2010

The Gay Rights Tipping Point

By Mike Dorf

With yesterday's ruling by Judge Phillips striking down "Don't Ask Don't Tell," we appear to have reached a tipping point on judicial willingness to act to protect gay rights. Together with earlier rulings this year, we now have federal district court rulings invalidating the Defense of Marriage Act, California's Prop 8, and Don't-Ask-Don't-Tell. Although I agree with all of the rulings as a normative matter, I'm interested here in a causal account. Both DOMA and Don't-Ask-Don't-Tell have been on the books since the Clinton Administration, whereas prior to the ruling in Perry v. Schwarzenegger, no federal court had invalidated a state law barring same-sex marriage, ever. Why the seemingly sudden change? I would point to two factors.

First, and most obviously, norms have been changing. Federal courts can sometimes get out ahead of public opinion, but given that federal judges come from the same basic pool as the nation's other elites, they are unlikely to go too far out ahead. And so, whereas the country was not quite ready for same-sex marriage or openly gay service members in the armed forces in the 1990s, by now both are pretty mainstream (especially opposition to Don't-Ask-Don't-Tell). It would have taken a very bold federal judge to reach these decisions in the 1990s; today, it's almost a no-brainer--especially when one looks at the perversity of Don't-Ask (in discharging service members with valued skills while we're fighting two wars) or the weakness of the arguments offered against same-sex marriage. I don't think the calculus should have been different 15 years ago, but because it was different for so many people, it was easier then for federal courts to duck the issue or to cite such general interests as "respect for tradition" or "deference to the political branches in military affairs."

Second, legislative efforts appear to have stalled. This is a familiar pattern in constitutional litigation, one that we have seen before with respect to legal challenges to Jim Crow, to malapportionment, and to restrictive abortion laws: So long as efforts to change the law through legislation bear some fruit, the courts are happy to leave such controversial issues to the legislative process, but once those efforts hit substantial resistance, judges no longer believe that elected officials will take them off the hook--and so they vote their consciences. To put the point somewhat differently, the notion that American judges are eager to intervene in politics is largely a myth; they typically intervene as a last resort.

To be sure, one might think that in a basically democratic system, judges should decline to intervene, even when progress appears to be stalled--because the definition of progress should be left to the political system. I think that's a defensible position, but it's not really a position held by anyone, and certainly not a position held by most of the critics of :"judicial activism." They think courts should intervene in politics when the outcomes produced by politics disfavor what they regard as the correct interpretation of the Constitution; they just disagree about what those correct interpretations are.

So, to return to the core point, I regard the critical turning point on Don't-Ask-Don't-Tell as the preposterous insistence by various defenders of the current policy on the proposition that it would be dangerous to engage in a "social experiment" with our military during wartime. As Judge Phillips documents, quite to the contrary, the military has dramatically under-enforced Don't-Ask during the last 9 years, precisely because of the national security dangers that arise from discharging essential service members who happen to be gay. So the experiment is well under way already.

Unfortunately, under-enforcement of Don't-Ask is not non-enforcement and so hundreds of service members continue to be discharged each year, while thousands more never sign up. It would have been ideal if Congress had carried through on repealing Don't-Ask, and perhaps it will yet do so before the appeals in this case are final. In the meantime, the opinion by Judge Phillips says, in essence, enough is enough.

18 comments:

How did the specter of 'legislation from the bench' become such a concern in American politics? Is there any historical basis for it, or did this concern simply arise from the controversial decisions like Roe?

Even if Obama favors repeal of the law, is he constitutionally bound to defend it here -- via a Justice Department appeal? I understand that the first question is whether the Administration will ask for a stay, because of logistical concerns. But if Obama does nothing, is he faithfully executing the duties of his branch?

Drew: The short answer is that unpopular decisions have always sparked charges of judicial overreaching. For the long version I recommend Barry Friedman's book, The Will of the People, which traces the relation between public opinion and the Court through American history.

Eric: There is no universally accepted answer to the question of when a President may or must decline to defend a law that is challenged as unconstitutional. I do think, however, that a President has equal or greater latitude to choose not to enforce a law he thinks is invalid than to choose not to defend it in court. Defense in court presents the issue for judicial resolution rather than simply resolving it by the executive. At least, that's the argument made by Walter Dellinger and others in an important memo in the Clinton Admin. I take the view that there are nonetheless circumstances in which an Admin would be justified in not defending a law that the courts likely would uphold.

I remain amused — I have a really, really sardonic sense of humor — at the posturing from on high on DADT when contrasted with the silence administratively. If a President had wanted to effectively eliminate DADT, it would have required only a three-line change in the administrative discharge regulations of the respective services... changing the standard of proof required for an administrative discharge. If we could play those games under the Reagan Administration, surely more-recent ones could have chosen to do so.

I was a CO during the Reagan and Bush I administrations charged with enforcing AFR 39-10 ¶ 5-39(h), and chose not to do so because in my judgment — and that of many of my contemporaries — the standard of proof could not be met by mere "preference." Instead, it required overt acts prejudicial to good order and discipline during the era of Tailhook (which was only the tip of the iceberg). Unfortunately, the Bush I administration relaxed the standard of proof/decision/judgment in 1991 with a wholesale change to the regulation structure...

"So long as efforts to change the law through legislation bear some fruit, the courts are happy to leave such controversial issues to the legislative process..."

How very kind of our judicial masters to let us vote on things, as long as we vote the "right" way. Let's consider two scenarios:

1. A group of Americans want to do a thing. They try to get popular support for that thing. They can't get enough support to do it. It's a liberal thing. That means the legislative effort has stalled, and judges should step in.

2. A group of Americans want to do a thing. They try to get popular support for that thing. They can't get enough support to do it. It's a conservative thing. That means the democratic process worked. Hooray for democracy!

See also Spann, "Pure Politics," 88 Mich. L. Rev. 1971 (1990)(arguing that "[m]inorities have not only secured significant concessions from the representative branches, but those branches have typically done more than the Supreme Court to advance minority interests"). In other words, relying on judicial tyranny to "correct" the will of the majority is not necessarily a good idea.

2) You appear to have not noticed the following paragraph in my post that anticipated your point:

"To be sure, one might think that in a basically democratic system, judges should decline to intervene, even when progress appears to be stalled--because the definition of progress should be left to the political system. I think that's a defensible position, but it's not really a position held by anyone, and certainly not a position held by most of the critics of 'judicial activism.' They think courts should intervene in politics when the outcomes produced by politics disfavor what they regard as the correct interpretation of the Constitution; they just disagree about what those correct interpretations are."

In other words, your assumption/assertion that courts typically overturn conservative legislative outcomes in favor of liberal judicial outcomes but not vice-versa seems about 30-40 years out of date. See Citizens United; Parents Involved in Seattle Community Schools; etc.

My assertion wasn't really about the tendency of judges to prefer liberal over conservative outcomes. It was more about your phrase "efforts to change the law through legislation bear[ing] some fruit." Stalled efforts may, in fact, indicate that the legislative efforts have produced precisely the best outcome.

My two scenarios were aimed at you, rather than at judges. You prefer liberal outcomes, so stalled legislative efforts at liberal change suggests a failure of some kind, whereas I see it as the system working properly. The converse is true with me to some degree, but I'm at least willing in the case of gay rights legislation to shrug my shoulders when the other side wins, and say "they won fair and square."

(Not so where four Californians tell the vast majority of the state that (a) they are wrong and (b) no longer have the right to have an opinion on the issue. Not a meaningful opinion, anyway.)

And thanks for the welcome. Glad I made such a good impression on you. I actually came back wondering whether you had discussed another issue on your blog, and you haven't, so I scrolled down here.

I watched a panel discussion once where the more conservative lawyer pointed out that the vast majority of Americans favored something. The liberal lawyer countered by mentioning the Federalist Papers, noting (correctly) that they warn against the danger of tyranny of the majority.

While true, she missed half the point: the framers also feared tyranny of the minority. And they didn't solve that problem, as the liberal lawyer seemed to argue, by establishing a Supreme Court as the champion of minority rights while the political branches protect majority rights. In a system involving an unreviewable Supreme Court, which can be checked only at glacial pace, such a notion is profoundly unwise.

As Spann pointed out, the political branches are, in fact, often more productive arenas for defending minority rights. In the case of slavery, the President and Congress were light years ahead of the Supreme Court. This suggests that the American people can and do reach the correct decisions more often than not.

I think we're getting derailed by my use of the word "stalled." I was making a limited, defensive point. Judicial review critics (of whatever political stripe) sometimes complain that courts intervene in politics prematurely. Now obviously if one thinks that courts ought not to intervene at all, or ought not to intervene at all on some issue, then any intervention is premature. But the particular criticism I have in mind acknowledges that there are occasions when judicial intervention in the name of constitutional interpretation is appropriate; it just says that courts ought to hold their fire and give the legislative process a chance. Why? The legitimacy reasons to which Sobek points are certainly part of the answer. My point was simply that the critique strikes me as overblown: By temperament, most (not all, but most) judges don't want to be deciding controversial social issues, and so they already tend to do just what the critics urge.

All of the above assumes that the judges have some method for reaching answers to constitutional questions, so that they know the difference between a stalled or slowed legislative effort to recognize a constitutionally required outcome and a legislative outcome that, while not satisfying the judge's policy preferences, is nonetheless a constitutionally permissible resting point. If one thinks that judges lack such a method--or that they're only ever just doing politics dressed up in constitutional rhetoric--then one should simply say that, and not pretend to care about timing.

Finally, none of the above has a necessary left/right valence. It applies equally to perceptions of "stalled" efforts to secure gay rights as it does to efforts to secure gun rights or rights against affirmative action.

1. I still struggle to see how the judiciary can be "tyrannical" in the positive sense. At most, it can only nullify a law, limiting the ambit of (positive) legislative reach. The framers defined "tyranny" almost exclusively within this latter context -- affirmative law was the biggest perceived threat.

2. I sort of see the point about the civil war era. But it's also possible to turn it around. Suppose a modern-day SCOTUS, confident of its independence, existed at the time Congress passed say, the Kansas-Nebraska Act. A vigorous human rights rejection of it would have more quickly put the country on sound footing (perhaps even averting war). Or suppose an empowered court acted sooner in some way. Instead, it was feeble and weak, exactly how some conservatives would prefer it to look today.

In this vacuum, it took the political branches 80-90 years to finally eradicate slavery, to say nothing about the segregated society that still remained.

So while majorities might finally get stuff right (and that's not always the case), it hardly makes us a "more perfect" union if it takes exponentially longer than necessary. In fact, I'd say we're *required* to get the basics right much faster than what would otherwise transpire through political evolution. And if it's too fast, the constitution can be amended. If there aren't the super-majorities to amend the constitution (over-riding the ruling), that simply means a critical threshold within society is aligned with the decision -- i.e., there is substantial democratic support among the people in the first place.

Given the choice of risks like Lochner (where the court went nuts), vs. those that might affirmatively result in lost personal liberties (privacy, religious freedom, etc.), I'll take the former paradigm -- because the worst case is that we err too much in favor of personal rights. If we're going to mess things up from time to time, I'd prefer the inherent bias to lean that way.

Eric said, "At most, it can only nullify a law, limiting the ambit of (positive) legislative reach."

I think gay marriage is a perfect counter-example. When courts say "you must recognize a right to gay marriage," that is positive law. Prop 8 didn't arise in a vacuum. It's not a case where a previously-existing right was sought to be curtailed by a nasty-minded majority.

Eric also said, "I'll take the former paradigm -- because the worst case is that we err too much in favor of personal rights."

The worst case is that people get killed. If the Fourth Amendment is read to broadly, and too many violent criminals escape incarceration, people will die. If national security law is read too restrictively, fewer terrorists can be stopped before they kill innocent people. If SCOTUS insists upon civilian trials for foreign nationals captured on foreign battlefields while shooting at our soldiers, more of our soldiers will die.

I had this same problem with the Pentagon Papers case. SCOTUS wanted the broadest possible reading of the First Amendment. I argued to my law school class that such an interpretation, without actually giving the Court and the lawyers time to read the documents, could plausibly result in US allies being murdered. None of my classmates seemed to care.

Generally I favor an extremely broad reading of the First Amendment (broad enough to cover Citizens United, for example), but I'll hesitate - at least long enough to get more facts - when it could result in loss of life. SCOTUS did not hesitate.

I think gay marriage is a perfect counter-example. When courts say "you must recognize a right to gay marriage," that is positive law. Prop 8 didn't arise in a vacuum. It's not a case where a previously-existing right was sought to be curtailed by a nasty-minded majority.

So by implication, do you think Loving v Virginia was a case in “positive law”, since the court nullified the law’s reliance on race? If not, how is that different than a court nullifying the use of orientation?

I'd pose it the other way: with gay marriage, courts are saying that the government went too far in excluding gay people, so it needs to be pushed back (limited). It therefore reads as nullification to me. Or better yet: the initial law is an example of affirmative / positive encroachment on liberty.